C. MAMIMALA Vs. DIRECTOR RURAL DEVELOPMENT & PANCHAYAT RAJ DEPARTMENT
LAWS(MAD)-2020-10-342
HIGH COURT OF MADRAS
Decided on October 09,2020

C. Mamimala Appellant
VERSUS
Director Rural Development And Panchayat Raj Department Respondents

JUDGEMENT

N.ANAND VENKATESH,J. - (1.) These batch of Writ Petitions have been filed by the Presidents of various Panchayats challenging the action of the Respondents in utilizing the funds meant for the Panchayats from and out of the 14th Financial Commission (hereinafter referred to as "FFC") and utilizing the same for carrying out the works and particularly, the work of upgradation of roads in the respective villages falling within the panchayats, without the concurrence of the elected body in the respective panchayats. Apart from the said challenge, the Petitioners have also questioned the calling of tender by the Respondents for carrying on with the upgradation of road work in the respective panchayats.
(2.) The common grievance of the Petitioners is that the local body elections which were due in October 2016, was not conducted till the year 2019. During the interregnum period, in order to administer the local bodies such as the Corporations, Municipalities, Town Panchayats, District Panchayats, Panchayat Unions and Village Panchayats, Special Officers were appointed in all the local bodies to perform the functions of the respective local bodies. Ultimately, the elections were held in December 2019 and all the office bearers took charge during the first week of January 2020. Thereby, the tenure of the Special Officer came to an end and the elected body assumed charge. In spite of the same, the Respondents were utilising the funds from and out of the 14th FFC and started calling for tenders to appoint contractors to carry on with the work of upgradation of roads in various panchayats. According to the Petitioners, this was done without the concurrence of the elected body and the elected body was completely side-lined and the Executive was continuing to call for the tenders independently and was also taking hasty steps to commence the work. Aggrieved by the same, the above batch of Writ Petitions have been filed before this Court.
(3.) The Director of Department Rural Development and Panchayat Raj has filed a common counter affidavit in all the Writ Petitions. The relevant portions in the counter affidavit are extracted hereunder: "8. The Government of India has earmarked a sum of Rs.1516.12 Crore for 2017-l8, Rs.1753.87 crore for 2018-19 and Rs.2369.86 crore for 2019-20 under Fourteenth Finance Commission Basic Grant for Tamil Nadu. While the funds earmarked for the year 2017-2018 and 2018-19 were released to all the Village Panchayats. The funds earmarked for 2019-20 was released only to the Village Panchayats in 27 districts, i.e. an amount of Rs.1820.11 crore, where the local bodies have been constituted. 9. It is submitted that considering the importance of improving the Village Panchayat Roads as indicated earlier it was decided to utilize the funds under 14th Finance Commission for the purpose of improving the Village Panchayat roads in a project mode. Accordingly, during the financial year 2018- 19, 1,504 KM length of Village Panchayat roads were taken up for improvement at a cost of Rs.300.33 crore. In continuation of this, 1622 KM length of roads was sanctioned at a cost of Rs.359.83 crore under 14th Finance Commission during 2019-20 using 1 st instalment of funds and another 399.33 crore was proposed to be taken up by using 2 nd instalment funds under the financial year 2019-20, which is being challenged now. The works taken up by using 1 st instalment of funds for the year 2019-20 was tendered at the District Level only and the same procedure was adopted for the 2 nd instalment also. In short, considering the quantum of funds involved the implementation process was conceived as a scheme and directions issued accordingly. 10. It is submitted that, to draw some parallels and precedence, it would be prudent to peruse the following aspects:- The 12th Finance Commission grants and 13th Finance Commission grants provided specific grants for the Maintenance of Rural roads. Whereas, the 14 th Finance Commission grants have built in the maintenance requirements within the overall allocation to the State which is in turn released directly to the panchayats. The warrants for using all available resources effectively for the improvement of rural roads have been well laid out in the opening paras. The latest directions issued vide reference DRD &PR, Lr.No.57779/2019/TU1 dated 17.06.2020 for the improvement of roads under 14th Finance Commission are in line with the same objectives. Further, the Maintenance Grants under 12th Finance Commission and 13th Finance Commission were tendered at the district level with standardised and uniform bidding process. The same approach is being followed. The directions issued by the department are clear and well ordained. 11. It is submitted that the Rural Development and Panchayat Raj department implements numerous development programmes in the rural areas, the department plays a major role in facilitating and supporting the Village Panchayat and other Rural Local bodies to fulfil their basic responsibilities. Section 7 of the Tamil Nadu Transparency in Tenders Act, 1998, provides as follows:- "The Government or the procuring entity, may, by order, appoint an officer under its control as Tender Inviting Authority for carrying out the functions assigned to it under this Act." In exercise of the above powers conferred by section 7 of the Tamil Nadu Transparency in Tenders Act, 1998 (Tamil Nadu Act 43 of 1998), the Government of Tamil Nadu had appointed Tender inviting authorities and Tender accepting authorities in the Rural Development and Panchayat Raj Department vide G.O. (Ms) No. 203 RD & PR (PR.I) Dept. Dt.20.12.2007. This order specifies tendering authorities and their powers at various levels for the department as a whole. However, the decision to nominate tendering authorities for a particular scheme is decided based on the scale and size of the project, complexities involved etc. This protocol is followed for all the programmes implemented by the RD &PR department and the same has been followed in the instant case of 14th Central Finance Commission grants also. Hence, there is no malafide intention. Further, the bidders are to be identified based on two stage evaluation process including Technical and Financial Evaluation. The Bidders capacity are to be assessed based on financial standing, Work experience, assessed bid capacity based on present commitments etc. This begs the question, whether the Village Panchayat have the wherewithal, technical know-how, in-house capacity, man power to carry out these processes. The option of Etendering is presently not available in the Village Panchayats, nor there infrastructure or capacity to handle such processes. The department after due consideration of all these factors have indicated the Project Director as Tender Inviting Authority and District Collector as Tender Accepting Authority. It is a simple fact that the tender process would be more streamlined if the tendering is done at the District Level as against tendering in numerous Village Panchayats in Tamil Nadu. However, the payment for the bills will be made by the concerned Village Panchayat based on the proceedings of the District Collector. In fact the department is facilitating and supporting for the better execution of the work in Village Panchayat and there is no any hindrance or interference of the powers of elected representatives of the Village Panchayat. 12. It is submitted that the objective of the Government is to provide road connectivity to the rural people and also to ensure that the benefits provided are sustained for longer periods. The department has institutionalized a systematic Quality Control (QC) mechanism which includes the departmental officers at State, District, Subdivision and Block level. To ensure the uniformity and adherence to e-tendering procedures, tender notice is issued at the District level and the Project Director as Tender Inviting Authority and District Collector as Tender Accepting Authority. This will ensure that these works are monitored properly and implemented as per quality standards. On the other hand, the Village Panchayats with limited resources will find it difficult to ensure the technical requirements indicated above in the implementation of scheme. 13. It is submitted that nothing is denying the fact that the Panchayat Raj Institutions functions as the grass root level democracy. At the same time, the department provides hand holding support to the Panchayat Raj Institutions to perform their duties and realize the objective of grass root level democracy. The Department and the Panchayat Raj Institutions work as parallel verticals supplementing and complementing each other. The objective of Panchayat Raj cannot be met without the functioning of these two verticals. Further, the Government, through the Rural Development department and especially the District Collector, who is the Inspector of Panchayats, has the responsibility of monitoring and streamlining the functions of the Village Panchayats. The action of the District Collectors is in keeping with this. 14. It is submitted that, the Nomination of the Project Director as the Tender Inviting Authority and District Collector as the Tender Accepting Authority is not a violation of any law or usurpation of the powers of the Village Panchayats. This is rather amelioration of the implementation process. The question is whether the bidding process should be more streamlined, standardized, transparent or otherwise. The Government implement various development schemes in the rural areas, the implementing procedures for each case is decided based on various factors. Any interference in these procedures will have a bearing on the implementation of all the programmes. As indicated in the opening paras, there are 1.20 Lakh KM length of Village Panchayat Roads and the Government have provided funds for the improvement of these Village Panchayat Roads under various State and Central Government Schemes like TNRRIS, NABARD, PMGSY, SCPAR etc. All these programmes are tendered at the District Level and the same procedure is being followed under 14th Finance Commission Grants. When the programmes objectives are similar, why should there be a distinction in the implementation process under 14th Finance Commission Grants. In the present case, if the plea of few Village Panchayat Presidents is upheld, this would set a bad precedence in the scheme implementation process in the State. The department had proposed to invest about Rs.399.33 crores under 14 th Finance Commission Grants for the improvement of the Village Panchayat Roads based on the 2 nd instalment release under 14th Finance Commission during 2019-20. It is the responsibility of the Department to ensure that this amount is properly spent based on standard and time tested procedures. The conduct of the tenders at the Village Panchayat would dilute the entire bidding process and also the objectives of the Government to improve the rural roads. The orchestrated filing of Writ Petitions is an effort to derail the objective, of the Government and would ultimately deny the intended benefits reaching the Village Panchayat. 15. It is also submitted that 14 th Finance Commission funds are being allotted to Village Panchayat and then administrative sanction is to be accorded by the District Collector. It is further submitted that it has been directed to take up the road works in only those panchayats which have sufficient funds of more than Rs.10 lakhs so that the other requirements of the Panchayats are not affected which clearly gives enough leverage for the Village panchayats. It is submitted that there is no restriction in the utilisation of funds towards for other basic requirements i.e. water supply, street lights, sanitation etc. in the village panchayat. It is further submitted that the road works were proposed under 14th Finance Commission funds pertaining to 20l7-18, 2018-19, 2019-20 excluding the funds already spent or required for the other Panchayat works. 16. It is submitted that it is not disputed that consequent to the Election of Ward Members, Village Presidents, Panchayat Union Council, Members, Members of the District Council, the Special Officers post came to be ceased and the Elected Members are functioning as per the Tamil Nadu Panchayat Act, 1994 There is no interference into the functioning of the elected representatives of Panchayat Unions and District Panchayats and Village Panchayats. 17. It is submitted that the in the directions issued through the DRD &PR Letter No. 57779/2019/TU1, Dated: 05.11.2019 and 17.06.2020, detailed guidelines have been issued for the selection of roads, prioritization, preparation of estimates, administrative sanction, tendering and Execution. As already indicated the improvement of comprehensive strategy in a systematic manner, the works identified under the 14th Finance Commission have been done based on such procedures. 18. It is also submitted that the specific intervention in terms of selection of works based on specific criteria and also with regard to the standardized tendering process. The funds allotted for under 14th Finance Commission are used for the respective Village panchayat only and the payment will also be made by the concerned Village Panchayat. Further, the works have been considered in only those Village Panchayats which have enough funds for taking up other works. 19. It is submitted that the petitioners have claimed that they are the only elected person to take the works in Village panchayats. It is submitted that all the three tier Panchayat Raj Functionaries, Members of Legislative Assembly and Members of parliament also provide funds for the implementation of developmental schemes in Village Panchayats. The implementing agencies are decided by the respective District Collectors. This is a similar approach considering the quantum of funds. 20. It is submitted that the Village panchayats do not have sufficient skilled staff to monitor the work and does not have the resources to conduct Etenders and also follow proper implementation procedures. The intention of the petitioners seems to be to question the tender process with malafide intentions. It is expected from the Petitioner to join hands with the District Collector /Inspector of Panchayats in the welfare of the people. So many Writ petitions are filed in The Hon'ble High Court of Madras for the same prayer which has lead to delay in commencement of the road works before the ensuing monsoon." ;


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